On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4922-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2011

Before Judges A. A. Rodriguez and Sabatino.

The Borough of Freehold ("the Borough") appeals the trial court's order dated February 25, 2011 dismissing its complaint in lieu of prerogative writs contesting a use variance granted by the municipality's Planning Board to Veronica M. Davis, Esq. ("Davis"). The use variance permits Davis to operate a portion of her residence as a law office, an activity that otherwise would be disallowed on the premises under the applicable zoning ordinance. The trial court dismissed the Borough's complaint for lack of standing. We affirm.

These are the relevant facts. Davis is a matrimonial lawyer. In or
about February 2008 she entered into a contract to purchase, at a
price of $500,000, certain property located in the Borough at 68 Court
Street. The property contained a twoand-a-half-story residential
dwelling, a two-story building including a two-car garage, and another
building containing a one-car garage. The contract for sale was
contingent upon Davis obtaining a so-called "D" variance*fn2
to convert the property into a law office for six attorneys
and staff. The property is in the Borough's R-5 residential zone,
which generally does not permit office or commercial uses.

Davis consequently applied for a "D" variance with the Planning Board. The application did not contemplate that Davis would reside on the premises. After two days of hearings, the Planning Board denied her initial application in a resolution dated November 12, 2008.

Despite the Planning Board's initial denial of Davis's request for a use variance, she purchased the property for a reduced price of $375,000. Davis moved into the residence and began using a portion of the premises as her law office. According to Davis, she thought she was entitled to do so pursuant to Borough Ordinance RPO 18.70. That ordinance permits up to 500 square feet of certain residences to be used as office space. Davis mistakenly believed that the ordinance applied in the entire Borough, but the Planning Board determined that it did not apply where her residence was located. Davis also thought that she could lawfully use the residence as a home office because the surrounding neighborhood contains several law offices and her property is situated within only 525 feet of the Monmouth County Courthouse.

In January 2009, Davis applied to the Planning Board for a second time for a use variance, invoking a "general welfare" justification that can support such variances.*fn3 Specifically, Davis requested that she be permitted to convert two rooms on the first floor of the residence, consisting of 380 square feet, to a home office, and to use the remainder of the building as her dwelling. As described by the trial court, the proposed variance would enable Davis to use the premises to meet with clients, hire one employee, display exterior signage, create additional parking on the property, and install a handicap ramp or lift.*fn4

The Planning Board heard Davis's post-purchase variance application on three non-consecutive sessions in June and July 2009. Davis testified in support of her application. She also presented expert testimony from Michael Geller, a planner and engineer.

On August 26, 2009, the Planning Board issued a resolution denying Davis's post-purchase variance request. According to the resolution, the Planning Board was not persuaded that Davis had met the positive and negative criteria required for granting a use variance pursuant to N.J.S.A. 40:55D-70(d). Nevertheless, Davis apparently continued to operate her law office at the property, and she consequently received a summons*fn5 for doing so.

Having failed to obtain the Planning Board's approval, Davis filed a complaint in lieu of prerogative writs in the Law Division in October 2009. Davis asserted that the Planning Board had not properly applied the standards for a use variance set forth in N.J.S.A. 40:55D-70(d), and had not correctly analyzed the applicable positive and negative criteria. She argued that despite recitals in the Planning Board's resolution alluding to "general welfare" considerations, several Planning Board members, in actuality, had mistakenly applied the alternative "hardship" test of N.J.S.A. 40:55D-70(d) in casting their votes. In particular, as the trial court noted, several Planning Board members had referred to Davis's failure to demonstrate hardship.*fn6

After considering these arguments, Assignment Judge Lawrence M. Lawson issued a written opinion on May 24, 2010, remanding the matter to the Planning Board to reconsider Davis's variance application using the proper standards. Among other things, Judge Lawson noted that [t]he language throughout the [hearing] transcripts is of not only undue hardship, but also of blatant frustration with [Davis] for making the application. As such, this [c]court is unable to glean from the record below whether the [Planning] Board accurately applied the positive and negative criteria, or rather, if such language was in the Resolution as mere pretext and the incorrect standard was applied to reach the denial.

Judge Lawson concluded that the Planning Board's application of the erroneous legal standards rendered its denial of the variance request ...

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